Opinion on Water Rights

 

The deadline for the City to object to its voluntary sixty percent reduction of the City of Great Falls’ 1889 water right is November 3, 2008; this date is a final extension of the original comment period for the Basin 41QJ adjudication process. After November 3, rescinding this voluntary reduction will be impossible.

 

On June 26, 2006, the previous city manager approved the reduction of City water rights from 53,574 to 20,104 acre-ft per year on the recommendation of a water rights consultant hired by the City. The consultant used a standard DNRC rule of thumb of 250 gallons per person per day and an estimated service area population of 71,920 to arrive at 20,140 acre-ft per year. A final reduction request was submitted to the DNRC on September 5, 2007. Unfortunately, the public was unaware of this water rights give-away until just recently.

 

The water rights consultant’s argument to the City Commissioners was that, on June 6, 2006, the DNRC made a remark on the City’s water right (41QJ-123410), which stated, “volume is excessive, at flow rate claimed must run 24 hr/day.” The DNRC is seeking to reduce Missouri River claims because the river’s water is oversubscribed. As a quote from the Temporary Preliminary Decree Basin 41QJ Decree Report states, “The sum total volume of the water rights shall not exceed the amount put to historical and beneficial use.” Exactly what this quote means is open to interpretation and the Water Court will sort through the claimed rights to make the final determinations.

 

From discussions with Water Masters, Water Judges, and helpful DNRC employees, we now realize the whole water rights system is complex and confusing. A senior DNRC employee commented that it is not typical to use the rule of thumb to estimate the allowable claimed water right for a municipality. While Montana does not have a growing cities doctrine to account for increased future water use, the water court may view incremental growth in pumping capacity as indicative of increasing water usage over time. Possibly, offering evidence of the historic, steady growth in water usage and pumping capacity would result in the water court confirming all of the historical water rights of the City of Great Falls.

A history of the water system written in 1949 reported the City installed two new centrifugal pumps with a capacity of 2 million gallons per day (mgd) in 1910. Two pumps were added in 1911 and another was added in 1914 bringing the total pumping capacity to 12 mgd. Improvements were made to the pumping station in 1916-17. In 1932 a new pumping station was constructed. A 1949 drawing showed the water from the Missouri River flowed through two pipes, one a 36-inch cast iron pipe and the other a 48-inch concrete-encased wood stave pipe, into a 47,000 gallon concrete forebay. The pumping capacity was increased in 1954 to five low-lift and five high-lift service pumps. A sixth pump was added to each service in 1960. In 1971 a new intake structure for the water treatment plant was built. The June 23, 1971 notice of water appropriation (Reel 71, Doc 6978) includes in statement number three, “the means of diversion of said water will be two intakes pipes, one forty-eight inches (48”) in diameter and the other seventy-two inches (72”) in diameter…” A seventh low service pump was added in 1971. These actions show both growth in demand and pumping capacity prior to the water rights claim date of 1973.

 

The city of Billings is planning on defending approximately 400,000 acre-feet per year when their basin comes up for adjudication. Perhaps the city manager of Great Falls could work with Billings’ manager to create a strategy to preserve the historical water rights for both cities. Great Falls could be the test case to present the arguments agreed upon by water right attorneys, city managers, and interested citizens of both cities.

 

Even Mayor Stebbins has recognized the importance of water. In The Great Falls Area Chamber of Commerce 2008 Community Guide, Mayor Stebbins discusses water’s importance to the development of Great Falls. The article "Three Rivers Run Through It" on page 7 states, “[Stebbins says] the Missouri ‘is vital to economic development.’ . . . Stebbins believes over the next century, oil is going to become insignificant and water will be even more valuable as a resource. Great Falls has a lot of it.” Unfortunately, Great Falls has given away many of its rights to that water if the City does not react by November 3rd.